Proposed Buffer Zone Around EMW Clinic May Be Controversial, But It Is Constitutional

On May 20, Louisville Metro Council will consider a proposed ordinance that would create a 10-foot buffer zone outside of healthcare facilities in Louisville. An obvious focus of this ordinance is the EMW Women’s Surgical Center, which is the only licensed abortion clinic in Kentucky.

EMW is always under attack by the Kentucky legislature, which continues to find new ways to make it harder to get an abortion, and it was almost shut down by former Gov. Matt Bevin. But, even without those obstacles, EMW has consistently dealt with the problem of protesters outside its doors. The problem has become so bad that there is a force of volunteer escorts that have helped patients get inside the building, but, during the pandemic, the escort volunteers have had to stay home while protesters have continued to impede access to the clinic, usually without observing social distancing or wearing a mask. As a result, the EMW’s patients have been exposed to increased safety risks and Metro Council is therefore reconsidering creating a buffer zone.

A similar proposed ordinance was rejected last year, largely due to concerns that the ordinance would violate protesters’ First Amendment rights. This new proposed ordinance has raised similar concerns but the Supreme Court and several other federal courts have generally approved of buffer zones around abortion clinics and other venues as valid “time, place or manner” restrictions on speech. Based on these cases, it is clear to me that this proposed ordinance constitutes a lawful time, place or manner restriction of freedom of speech and expression because it (1) is content-neutral, (2) serves a significant government interest, (3) is narrowly tailored, (4) and offers ample alternative channels of communication.

First, the proposed 10-foot buffer zone is content-neutral because it does not restrict speech based on the subject matter of the speech or the viewpoint expressed; it restricts all speech within a particular place regardless of what the speech is about. Even though the ordinance is likely to affect anti-abortion protesters more than other groups, the law is still content neutral because the intent of the ordinance is not to restrict what protesters can say and instead is intended to prevent physical harassment of patients and staff.

Second, the ordinance serves a significant government interest: patient safety and access to healthcare facilities. In a prior 15-foot buffer-zone case — Schenck v. Pro-Choice Network of W. N.Y. — the Supreme Court noted that there is a significant government interest in “ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services.” In addition, as the documents attached to the proposed ordinance show, the government’s interests here are not imaginary; patients have been repeatedly harassed by protesters, necessitating multiple calls to the police.

Third, the proposed ordinance is narrowly tailored because it creates a very small buffer zone that allows protesters to still speak and be heard by the people entering or exiting healthcare facilities. In addition to the 15-foot buffer zone case mentioned above, the Supreme Court, in 1994,  upheld a 36-foot buffer zone around an abortion clinic and explicitly found such a buffer zone to be narrowly tailored to the government’s interest in “protecting access to the clinic and facilitating an orderly traffic flow on the street.”

Further, this buffer zone is necessary here. As noted in the proposed ordinance, several healthcare facilities have indicated their support for the buffer zone. More importantly, existing efforts to curtail the excessive tactics used by protesters have been insufficient. The police have frequently been called to intervene when conflicts arise between protesters and clinic patients, and they have had difficulty doing so without a clear demarcation of where protesters are permitted to be outside the clinic. The creation of a 10-foot buffer zone would directly address this issue and make it easier for the police to do their work and protect patients while respecting the rights of protesters.

Finally, the proposed ordinance does provide ample alternative channels of communication for protesters. A 10-foot buffer zone will still allow protesters to speak to the public and individuals who pass by as well as hold signs to indicate their views. Accordingly, these protesters will be able to be seen and heard by their target audience, which, according to the Supreme Court in Madsen v. Women’s Health Ctr., is all that is required. The only thing the protesters will no longer be able to do is physically block or touch patients, which is not protected by the First Amendment.  

In all, based on existing Supreme Court cases, the proposed buffer zone is an extremely modest and, more importantly, constitutional, restriction on protesters’ freedom of expression. The Supreme Court has previously, and repeatedly, permitted much larger buffer zones around abortion clinics in cases that presented less evidence of a need for patient protection.  

Abortion is still a very controversial issue and it is therefore difficult to say whether the proposed ordinance will pass. If it does not, however, that will not be due to an accurate reading of the First Amendment or Supreme Court cases.

JoAnne Sweeny is a UofL law professor.